The revered justice of Nigeria’s supreme court spoke unequivocally Friday on the controversy surrounding the redesign of the naira, the fiasco that has attended it and came down hard on the federal government led by President Muhammadu Buhari.
Top lawyers have told BusinessDay that what is singularly outstanding from today’s Supreme court decision is that the justices of the highest court in Nigeria made it clear that under the 1999 Constitution, the President of the Republic does not have unfettered powers. That he can rule by himself and ignore constituent states and other statutory bodies created by the constitution.
Effectively, the practice of setting policy on significant national issues merely by taking memoranda to either the Federal Executive Council or, as in this case, directly to the President by a single official of the Federal Government, without consultation with key constitutional bodies like the National Economic Council and the National Council of State, has been declared to be not only illegal but also unconstitutional.
Lawyers say the decision is a seminal and groundbreaking decision on an issue of constitutional law, with very far reaching implications for Nigeria’s emerging democracy.
The first question the court ruled on was on the matter of jurisdiction. The Supreme Court of Nigeria (SCN) said it is glaring that the CBN has no power to introduce new naira notes without the directive of the President and that Mr. President’s broadcast proved that he authorised the introduction of the new notes.
The Court also said that whatever the central bank does, it does on behalf of the federal government and for a disclosed principal and so the suit brought by the states can be effectively determined without joining the CBN. Furthermore, the scope of the original jurisdiction covers any dispute and the Supreme court is vested with unlimited jurisdiction over disputes between States and the Federation. The preliminary objections were thus dismissed accordingly.
On the merits of the matter brought by the states, the SCN held that it is not in dispute that the President did not consult the National Council of State and the National Economic Council, which it said are constituents of the Federation that ought to have been consulted beforehand. The Court, however, noted that the 1999 Constitution DOES NOT expressly require the president to consult them before a decision such as this is taken; but stated that the need to consult them is implicit in the Constitution and in a democracy.
Read also: Old naira notes remain valid till December, says Supreme Court
The Court found President Muhammadu Buhari realised belatedly that these councils ought to have been consulted. The justices also declared that there was nothing to show by any public notice that the currency would be redesigned as the public only became aware through press remarks that do not qualify as a notice to the public and so the Defendants’ (FG) reliance on it as a proper notice is misconceived.
The Court also found that President Buhari in his national broadcast admitted that the policy has brought untold hardships. The justices berated the decision making by the president when they said that the decision to change a nations currency cannot be handed down after a personal consultation between the CBN Governor and the president.
The decision to change a nations currency cannot be handed down after a personal consultation between the CBN Governor and the president.
On this point, Justice Agim, reading the lead judgment, referred to the procedure in India and held that changing a country’s currency must involve serious consultations and deliberations. This was not done in the case of Nigeria and the justice held that no reasonable notice was given as required by section 20(3) of the CBN act. Consequently, he further held, that the directive and implementation of the currency redesign policy is invalid and the cash limit policy unjustifiable.
Referring to the question of possible contempt of court by the Defendants, the Supreme Court held that they ought not to be heard when they – federal government and the president – have refused to obey orders of the supreme court. The justices held that the disobedience of the order of the supreme court by the defendants is a sign of the failure of the rule of law.
Accordingly, the SCN held the suit has merits and ordered reliefs as follows:
1. A declaration that the currency redesign and accompanying cash limit policies are inconsistent with the CBN Act.
2. A declaration that the President cannot make a unilateral policy without consulting with and carrying along the States.
3. A declaration that in issuing the policy, the President is under an obligation to also consult with and carry along the national council of states.
4. A declaration that the policy has impeded the functions of the State Governments.
5. A declaration that the directive of the President is illegal.
6. An order that the old version of the naira notes shall continue to be legal tender with the new naira notes until December 23, 2023.
